Sunday, November 09, 2008

AP reports that President-elect Barack Obama plans to use executive orders to overturn numerous Bush-administration policies implemented by executive fiat (perhaps including overturning some of the President's notorious "signing statements"). This is to be expected and in most cases I'm glad to see it. (Bush did the same thing with many Clinton-era executive policies when he first came into office.)

In fact, as long as somebody's compiling a list of unilateral, last minute Bush administration misdeeds that need immediate undoing, allow me to humbly suggest that the FBI's under-the-radar guidelines on snitching and political snooping issued in October are among those that deserve immediate repeal. According to the New York Times, the FBI considered these new rules "one of the final steps by the Bush administration to extend its far-reaching counterterrorism policies into the next administration and beyond."

The most offensive aspect of the new rules as far as I'm concerned was their expansion of FBI investigative tools where there is no reason to suspect criminal wrongdoing, in what's called an "assessment" instead of a full-blown investigation. As described by the Center for Investigative Reporting's Muckraker blog:

The bureau's definition of "assessment" is what seems to startle some observers the most. An assessment is different than a full-blown criminal or national security investigation, the latter of which requires reasonable suspicion, or "factual predication" as the bureau calls it, that a crime has occurred.

Groups or individuals targeted for an assessment may simply resemble to an agent a risk to public safety without any advance information indicating that was the case. It's not clear, then, how the bureau determines what groups or people should be spied upon if they haven't broken any laws and whether that process is arbitrary.

"[The FBI] cannot be content to wait for leads to come in through the actions of others, but rather must be vigilant in detecting terrorist activities to the full extent permitted by law, with an eye towards early intervention and prevention of acts of terrorism before they occur," the new guidelines state.

In other words, the FBI can use its full investigative weight to delve into people's lives - specifically but not exclusively because of political and religious affiliations - whether or not the FBI thinks they might have committed or be planning to commit a crime.

Ironically, by enacting these rules in October, the Bush Administration handed sweeping authority to monitor political dissidents they'd long coveted for themselves to Barack Obama and Rahm Emanuel, which must now look like an error in strategic judgment. Rather than embrace this anti-democratic power to snoop on his political enemies, though, President-elect Obama would do well to renounce this new authority and tell the FBI to revert to their old rules.

There's a darn good reason the FBI rules prohibited domestic intelligence investigations based on politics instead of suspicion of criminal activity: Those who've forgotten those three-decade old lessons should peruse through the relevant archives of the Church Committee from the 1970s, which fully investigated abuses of similar power under the Nixon Administration.

In fact, when I heard about the new FBI guidelines, the first thing I thought of was their similarity to the notorious "Huston Plan," which Richard Nixon authorized to spy on domestic American dissidents. According to the Church Committee, Nixon's decision to unilaterally expand domestic intelligence gathering as suggested in the Huston Plan "formed the core of Article 11 in the Impeachment Articles framed by the Judiciary Committee of the House of Representatives in 1974." Even so, seemingly few people even noticed when the Bush Administration rather publicly reinstated those same, long-banned practices.

These new FBI guidelines are a Huston Plan for the 21st Century, and they were approved unilaterally, over the objection of Congressional leaders. President Obama should repeal those new guidelines by executive fiat as soon as he gets the chance, unilaterally, the same way his predecessor enacted them.

Yesterday, I included rejecting the new FBI snooping guidelines approved in September and October by Bush, Mueller and Attorney General Mukasey among my suggestions for President-Elect Barack Obama. ... How likely is that if Mueller is staying on as FBI Director?

Excellent point - that does seem to dampen hopes for an Obama Administration rolling back executive snooping powers. (Though it's early yet - maybe they'll still surprise me.) Jeralyn also provides these excellent links to relevant source documents:

I hate to say this, but the fact is that a great many Americans remain woefully ignorant of the depth to which their rights have been nullified these past 20-30 years, thanks largely to the DrugWar eroding basic freedoms such as those enumerated in the Bill of Rights.

Every aspect of the civil-liberties destroying legislation such as the so-called PATRIOT Act and the Military Commission Act derived their powers from the already cemented-in-place, rights-abridging laws concocted during the DrugWar.

An 'Average American' generally doesn't know of how badly his/her rights have been diffused until they are unlucky enough to bump into the machinery that that diffusion created, and then it will be too late.

And one must also take into account those who, when told of the existence of that machinery, will shrug nonchalantly and say that since they have nothing to hide, they have nothing to worry about. Such 'Good Americans' (like the "Good Germans" before them) could care less that their rights have been abridged in the name of 'protecting' them...and they look askance at those trying to protect what little they have left as being a bunch of 'libruhl ACLU-type kooks'.

The idea of "recruiting informants" is especially dangerous. Which incarcerated or accused person is not going to "remember" something and become an informant if he/she is promised a reduction in time or a good plea deal. Matters not whether memory is faulty. Friends of Justice has been working against this for years. Hopefully the Obama Administration will reverse some of these Justice (?) Department rulings.

I predict that Team Obama will not substantially rollback the trend towards concentration of power in the executive branch. Obama's vision is to use state power to effect "change," and such a man is loathe to surrender the powers previously acquired by the office. Team Obama will instead expand and focus their powers in the service of their campaign to "change" America. For example, I doubt that they will get rid of the dreaded, useless, Kafkaesque "no-fly" list. Instead of seeing it abolished, we can expect to hear arguments its expansion and application in the service of "gun control." Expect to see the reintroduction of H.R. 1167, The No Fly, No Buy Act of 2007.

Anon @ 9:07. What is the basis of your opinion? I doubt highly that Obama will expand the powers of the president. His change is going to come in the areas of jobs, citizens , and over-turning the Nazi, err Bush, made laws that have been oppressing the people of this nation for the last 8 years.

I am all for rescinding the spy on America act..the unPatriotic Act...etc..but what I really want is those who perpetrated these unconstitutional Acts of torture, spying, rendition, military "tribunes", unlawful use of military force, war-profiteering, etc.,etc., and those in the Administration, the Department of "Justice" and Congress who condoned and enabled them..held responsible..at the very least indicted and tried for "Domestic Terrorism" (followed by a first class hanging for Treason)

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